Judgment of the Court (Eighth Chamber) of 25 April 2024 (request for a preliminary ruling from the Tribunalul Prahova - Romania) – SC Bitulpetrolium Serv SRL v Administraţia Judeţeană a Finanţelor Publice Prahova – Direcţia Generală Regională a Finanţelor Publice Ploieşti

(Case C-657/22, ¹ Bitulpetrolium Serv)

(Reference for a preliminary ruling – Taxation of energy products and electricity – Directive 2003/96/EC – Taxation in accordance with the principle of actual use of those products – Annex I – Minimum levels of taxation applicable to energy products provided for by that directive – Common system of value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(a) – Chargeable event – Article 63 – Chargeability of VAT – Article 78(1)(a) – Taxable amount – Reintroduction of energy products into the tax warehouse – Conditions imposed by national law – Additional excise duty and VAT applied as a penalty for non-compliance with those conditions – Principle of proportionality)

Language of the case: Romanian

Referring court

Tribunalul Prahova

Parties to the main proceedings

Applicant: SC Bitulpetrolium Serv SRL

Defendant: Administraţia Judeţeană a Finanţelor Publice Prahova – Direcţia Generală Regională a Finanţelor Publice Ploieşti

Operative part of the judgment

Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity and the principle of proportionality

must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into a tax warehouse of energy products to be used as heating fuel in order to be subsequently sold, the absence of notification of that reintroduction to the competent authority and the absence, in the certificates of receipt and cancellation invoices relating to those products, of references to the marking and colouring of those products, result in, as a penalty for non-compliance with those conditions, the application to those products, irrespective of their actual use, of the higher rate of excise duty laid down for gas oil for use as a motor fuel.

Article 2(1)(a), Article 63 and Article 78(1)(a) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

must be interpreted as precluding national provisions or practices according to which, in the event of reintroduction into the tax warehouse of energy products for use as heating fuel, value added tax is due on the amount set by the tax authority as additional excise duty on account of the application to those products of the excise duty provided for in respect of gas oil for use as a motor fuel, unless a taxable transaction consisting in a supply of the energy product in question for the purposes of its use as a motor fuel is carried out.

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¹ OJ C 155, 2.5.2023.